Torture and tribunals

After the United States led a coalition of countries into Afghanistan to drive the Taliban out, it was left with the question of what to do with a number of prisoners captured in that conflict. The U.S. decided to embark on a course of imprisoning these non-state actors and the debate over their final fate is still raging. President Bush is currently pushing Congress to pass legislation allowing aggressive interrogations and also authorizing military tribunals to try the detainees. Whether this will happen or if it is even the correct course of action is still highly debatable.

Back during the early days of the war in Afghanistan, Al Qaeda prisoners were divided into two groups. The “high-value terrorists” who were deemed to possess critical intelligence about Al Qaeda’s infrastructure were taken by the Central Intelligence Agency. These prisoners would disappear, sent to other states and treated according to that state’s laws in a process known as rendition. Since these other states do not keep as stringent watch on human rights abuses, it was thought that more aggressive interrogation methods could be used against them to gain information.

The second group of prisoners was less important and left to the jurisdiction of the military. The Bush administration’s lawyers began to write briefs arguing that the Geneva Conventions did not apply to these “enemy combatants” who had no status as actual soldiers but were terrorists outside of the law. With this determination, the door was opened to move these prisoners to Guantanamo Bay, Cuba.

These policies became even more complicated when the Supreme Court’s ruled in Hamdan vs. Rumsfeld, which argued that the president had no power to authorize military tribunals for prisoners and that they should be treated according to the Geneva Convention. This forced the White House to go to Congress to pass the new legislation discussed earlier. The two critical questions that arise from this debate are whether torture and rendition are acceptable and useful policies and what should be done with the detainees at Guantanamo Bay.

Republicans have been sharply divided over the first issue. President Bush has pushed for a broad interpretation of his war powers while Senators McCain, John Warner, Lindsey Graham and Susan Collins, among others, all support applying the Geneva Conventions to prisoners. The Bush administration’s primary argument in support of the aggressive interrogations is that it they have yielded important information that has stopped terrorist attacks. McCain makes the argument that aggressive interrogation, essentially torture, is a pointless endeavor because it gives unreliable information. Prisoners will admit anything in order to stop the torture.

The PBS program Frontline gave the example of one high-value terrorist, Ibn al-Sheikh al-Libi. Al-Libi was rendered to an unknown location from Afghanistan and his name later surfaced in Colin Powell’s speech to the United Nations justifying a hard line against Iraq. Powell describes testimony from al-Libi that described Iraqi training camps for terrorists. The information turned out to be false and al-Libi later recanted it all, saying he made it up under duress.

The United States should absolutely not use such aggressive interrogation methods that violate the spirit and letter of the Geneva Conventions. It eliminates the international legitimacy of the United States and opens a justification for such behavior to be used against its own soldiers. Also, McCain’s point is a strong one, that torture does not yield any useful information. The United States should absolutely interrogate prisoners to gain whatever information they can, but it must draw a line at torture.

The question of what to now do with these prisoners is a much more difficult and complicated question. It would be a grave mistake for the U.S. to simply release such hostile forces back into the world to cause further terror. Yet they cannot be held indefinitely without recognition of what crime they committed or why the U.S. has a right to hold them. What the United States should do is endeavor with the United Nations to set up a framework in which to try and hold terrorists.

The world was able to rally around a Convention against Genocide and has set up a permanent International Criminal Court to try actors that violate such a law. In the case of terrorism, a crime that is international in character, the solution must be international in character. International terrorists, those who participate in terrorism across state boundaries or in cooperation with entities outside of a state, should be identified as criminals in a comprehensive treaty. Jurisdiction over them could be given to the ICC. Such a treaty could guarantee a right for signatory states to interrogate such terrorists for critical information but a neutral party such as the ICC would best handle the final prosecution of them. This would allow interogation of terrorists in accordance with the opinion of the Senate, while also helping to marshall the rest of the world to participate in the fight against terrorism by placing the responsibilty to fight and arrest terrorists as an international obligation.